Mrs E Smith V Govia Thameslink Railway
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Case Number: 3306652/2018 EMPLOYMENT TRIBUNALS Claimant Respondent Mrs E Smith v Govia Thameslink Railway Heard at: Bury St Edmunds On: 8, 9 & 10 July 2019 7 November 2019 (in chambers) Before: Employment Judge Laidler Members: Mr C Davie and Mrs CA Smith Appearances For the Claimant: Ms A Hart, Counsel. For the Respondent: Mr G Baker, Counsel. RESERVED JUDGMENT 1. The claimant was not treated less favourably because of her disability and the claim of direct disability discrimination is dismissed. 2. The respondent did not treat the claimant unfavourably for something arising in consequence of the claimant’s disability 3. The respondent did not fail to make reasonable adjustments 4. All claims of disability discrimination fail and are dismissed. REASONS 1. The claim in this matter was received on 19 April 2018 by which the claimant brought claims of disability discrimination. She remains employed by the respondent. In its response received on 1 June 2018 the respondent denied all the claims. 1 Case Number: 3306652/2018 2. There was a case management discussion before this Employment Judge on 1 August 2018 when the claims and issues were clarified. The issues before this tribunal were as set out at that hearing and now set out below. The full merits hearing was listed for the 24 & 25 January 2019 but a postponement request was granted due to the unavailability due to ill health of the claimant’s trade union representative Mr John Stanford to give evidence. The hearing was relisted for 3 days commencing 8 July 2019. The tribunal only actually had 2 ½ sitting days and was unable to conclude its deliberations within that allocation. It was then not able to meet until November hence these reserved reasons. The issues “Disability (i) It is not in dispute that the claimant is and was at all material times disabled as a result of a mental impairment, namely Bipolar Affective Disorder. Direct disability discrimination: s.13 EqA (ii) Did the respondent (Liz Mead, Karen Gregson, Ody Nwankwo and/or Angie Palmer) treat the claimant less favourably because of her disability by subjecting her to the following detriments: a. Failing to arrange a timely OH appointment following the meeting on 24 August 2017. b. Failing to arrange a meeting with the claimant, OH and Liz Mead as recommended in the OH report of 18 October 2017. c. Adopting a passive and inflexible approach to OH consultation with the claimant’s treating psychiatrist. In particular, did the respondent: 1. fail to make reasonable efforts to establish contact between Dr Bahrololoumi and OH. 2. refuse to contemplate the claimant returning to work without a formal report from Dr Bahrololoumi. d. Failing to allow the claimant to return to work before 12 March 2018. e. Proposing on 23 January 2018 to dismiss the claimant on grounds of capability. (iii) The claimant relies on a hypothetical comparator of an employee in the same circumstances unable to work due to a physical disability or illness. Discrimination arising from disability: s.15 EqA (iv) Did the respondent treat the claimant unfavourably because of something arising in consequence of her disability, namely her absence from work, by: 2 Case Number: 3306652/2018 1. Reducing her basic pay to half pay on or around 12 October 2017. 2. Stopping her basic pay on or around 1 February 2018. 3. Requiring her to take two weeks of her annual leave entitlement in December 2017. 4. Proposing on 23 January 2018 to dismiss the claimant on grounds of capability. (v) If so, has the respondent shown that its actions were a proportionate means of achieving a legitimate aim, namely ensuring that all workers were fit and able to undertake their duties. Failure to make reasonable adjustments: s.20 & s.21 EqA (vi) Did the respondent have a provision, criterion or practice (“PCP”) that the claimant undertake her duties according to her contract of employment? (vii) Did this PCP place the claimant at a substantial disadvantage in comparison with persons who are not disabled? (viii) Did the respondent take such steps as were reasonable to take in order to prevent the PCP from having such an effect? The claimant contends that it would have been reasonable for the respondent to: 1. Allow the claimant to return to alternative duties without receipt of a formal report from the claimant’s treating psychiatrist (17 January 2018) 2. Allow the claimant to return to her normal role on a phased basis. (23 January 208) 3. Refrain from proposing on 23 January 2018 to dismiss the claimant on grounds of capability. (ix) Did clause 11 of the claimant’s contract of employment (capping sick pay at 16 weeks’ full pay and 16 weeks’ half pay) place the claimant at a substantial disadvantage in comparison with persons who are not disabled? (x) Did the respondent take such steps as were reasonable to take in order to prevent the clause from having such an effect? The claimant contends a reasonable step in the circumstances would have been for the respondent to pay the claimant full pay for the whole period of her sick leave. It is not in dispute that the respondent reimbursed the claimant for all sums deducted on or around 22 June 2018.” 3. The tribunal heard from the claimant and her Trade Union representative John Stanford and from the following on behalf of the respondent; Angela Palmer, Customer Service Route Manager; Elizabeth Weatherburn, Station Manager (she was Mead at the time but her married now has now been used as on her witness statement); and 3 Case Number: 3306652/2018 Karen Gregson, Area Station Manager. 4. The tribunal had a bundle of documents running to approximately 260 pages. From the evidence heard the tribunal finds the following facts. Findings of Fact 5. The claimant had been under the care of Mid Beds Community Mental Health Team for a personality disorder condition since 2015, she was diagnosed with bipolar effective disorder in June 2017. There is no dispute that she has a mental impairment within the meaning of s.6 of the Equality Act 2010 in relation to that condition. 6. The claimant commenced employment with the respondent as a sales assistant/train dispatcher in July 2014. This was a safety critical role. 7. In 2015 the claimant commenced a period of sickness absence due to depression. She returned to work in April 2016 on a phased return to work plan. 8. On the 22 June 2017 the claimant commenced another period of sickness. She was initially signed off with ‘anxiety disorder’ for 2 weeks from the 27 June to 11 July 2017. On 27 July 2017 her GP certified her fit to return on a phased basis and suggested initially part time hours for the first two weeks. 9. On the 3 August 2017, her return to work date, the claimant went missing in Biggleswade. The tribunal heard from the claimant and Liz Weatherburn in connection with this matter. The claimant has no memory of what occurred but knows that she ended up going to A&E. Liz Weatherburn was contacted late in the day and continued to take calls throughout the evening from family and colleagues concerned as to the claimant’s whereabouts until being told the claimant had attended A&E. Welfare meeting 24 August 2017 10. The claimant’s line manager Liz Weatherburn arranged a welfare meeting on the 24 August 2017 which the claimant attended. 11. The notes of this meeting record that the claimant had suffered a setback in her recovery and had not been able to resume work. She had been admitted to A&E with anxiety. The claimant informed Liz Weatherburn that she was not sleeping well, only up to 4 hours at a time, she had not been able to drive and was anxious about meeting people or having visitors to her home. She appeared to have some short-term memory loss and had been forgetting to follow her medication plan. The claimant was seeking continued support from the NHS and had been referred to the Mental Health Team. In the summary it was recorded that the claimant was to keep her manager informed of her progress and it was agreed they would 4 Case Number: 3306652/2018 have short regular catch up chats to not overwhelm the claimant or make her feel anxious. Her next psychiatric appointment was the following Monday and they would forward the report to her GP and a treatment plan. 12. There is no reference in that welfare interview form to occupational health. The tribunal accepts the claimant’s evidence supported by the evidence of Karen Gregson that a referral to occupational health was indeed discussed at that meeting. The claimant also sent an email to Liz Weatherburn on 11 September 2017 (page 68) asking if she had heard anything from occupational health about an appointment. In a medical report from Dr Bahrololoumi dated 8 September 2017 he records that the claimant had told him that she had been asked to meet with occupational health which she was going to do. Karen Gregson was also clear that under normal circumstances Liz Weatherburn would have sent the referral through to occupational health. 13. Liz Weatherburn’s evidence to the tribunal was rather confusing and conflicting on this point. She acknowledged that there was to be a referral to occupational health and believed that that was done in or about mid September. She stated that the referral had to ask questions of occupational health and that they did not have sufficient details to be able to make the referral.